Elwood M. Jenks

National Labor Relations Board - Board Decisions

Feb 16, 1949

81 N.L.R.B. 707 (N.L.R.B. 1949)

In the Matter of ELWOOD M. JENKS and UNITED MINE WORKERS OF
AMERICA, DISTRICT No. 31 1
Case Yo. 6-C-10.57.Decided February 16, 1949
DECISION
AND
ORDER
On September 4, 1947, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in, and was engaging in, certain unfair
labor practices and recommending that lie cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto.2 The Trial Examiner found further
that the Respondent had not violated Section 8 (3) of the Act, as
alleged in the complaint, by discriminating in regard to the hire and
tenure of employment of Millard Wiseman, and recommended dis-
missal of this allegation.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief. In addition, the Respondent has
requested leave to argue orally before the Board. The request for
oral argument is hereby denied, as the record and brief, in our opinion,3
adequately present the issues and the contentions of the parties.
On November 14, 1947, the Respondent filed with the Board a motion
to dismiss the proceeding, on the ground that the charging union had
not complied with the filing requirements of Section 9 (h) of the Act,
as amended. The Board has previously held that non-compliance
of a charging union does not preclude adjudication of an unfair labor
practice case in which the complaint issued before August 22, 1947.4
'At the time of the hearing United Mine Workers of America, District No. 31, was
affiliated with the American Federation of Labor but has since severed its affiliation. We
have amended the caption accordingly.
3Those provisions of Section 8 (1) and (3) of the National Labor Relations Act which
the Trial Examiner found the Respondent had violated are continued in Section 8 (a) (1)
and 8 (a) (3) of the Act, as amended.
3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the National Labor Relations Board has delegated its powers in connection with
this proceeding to a three -man panel consisting of the undersigned Board Members [Chair-
man Herzog and Members Houston and Mur(lock]
4 Matter of Macon Textiles , Inc., 80 N L R B 1525; Matter of Marshall and Bruce
Company , 75 N L. R B 90.
81 N. L. R. B., No. 121. 707
829595-50-vol. 81-16
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the Trial Examiner's rulings and finds that
no prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and supporting brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the exceptions, modifications, and additions noted
below:
1. The Trial Examiner found that, by certain activities of Respond-
ent Elwood M. Jenks and Foreman Walter Robinson, the Respondent
interfered with, restrained, and coerced his employees in the exercise
of the rights guaranteed them in Section 7 of the Act. We agree
with this conclusion. We limit the grounds for our finding, however,
to the following conduct of Jenks and Robinson, more fully set forth
in the copy of the Intermediate Report attached hereto: (a) Inter-
rogating employees concerning their attitude toward, and membership
in, the Union; (b) telling employee Wiseman that he could be dis-
charged for signing a union application card and that employees
Hooper and Shreves had been discharged for union activity; (c)
threatening that, if the union campaign were successful, the mine
would be put on a two-shift basis, thereby cutting working hours and
reducing the take-home pay of employees; (d) granting a 20-cent
wage increase in May 1946,5 when the Union's organizational efforts
were at their peak.6
2. We agree with the Trial Examiner that the Respondent dis-
criminatorily discharged Raymond Bennett on May 13, 1946. In
support of his contention that Bennett was discharged on April 6,
1946, because of inefficiency, the Respondent points, in his brief, to
Bennett's statement at the hearing that he did not return to work on
May 11, 1946, the day the mine resumed operations, because he "didn't
have no job." However, when read in context, the quoted testimony
clearly establishes Bennett's belief that the Union's dispute involving
the bituminous coal mine operators had not yet been settled on May 11,
1946, and that there was, therefore, to be no work on that date; 7 it
does not constitute an admission that Bennett did not return to work
on May 11, 1946, because he believed that he had been previously dis-
charged. We therefore reject this contention of the Respondent and
find that Bennett returned to work on May 13, 1946, because he believed
6 Although the Trial Examiner found that the wage increase was granted to all employees,
the record indicates that a few employees did not receive the increase.
s Matter of Macon Textiles , Inc., footnote 4, supra.
° As noted by the Trial Examiner, the Respondent suspended mining operations on
April 3, 1946 , at the request of the Union and did not resume operations until the United
Mine Workers and the United States Government , on May 11 , 1946, reached an agreement
regarding operations in the bituminous coal fields. The Union ordered the miners back
to work on May 13, 1946.
ELWOOD M. JENKS 709
mine operations were to be resumed on that date; and, as did the Trial
Examiner, we find further that Bennett was discharged at that time
because of his union membership and activity, in violation of Section
8 (1) and (3) of the Act.
3. The Trial Examiner found, and we agree, that the Respondent
discharged David Hooper and Joseph Shreves because of their union
membership and activities, and that he thereby violated Section 8
(1) and (3) of the Act. In addition to the evidence relied upon by
the Trial Examiner in finding discriminatory motivation herein, we
rely also on the statements of Respondent Jenks and Foreman Robin-
son to employee Wiseman, more fully set forth in the Intermediate
Report, that these two employees were discharged for union activity.8
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Elwood M. Jenks,
Clarksburg, West Virginia, and his agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees,
or by discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist any labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any and all
of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
8 We deem it unnecessary for purposes of establishing a violation of Section 8 (3),
to predicate our finding in any degree on the nature of Hooper 's rehiring on April 28,
1947 . However, we note that , although the Trial Examiner found that Hooper's rate of
pay at the time of his discharge was $1 .20 an hour and that he was rehired at $1 an
hour , the record indicates that Hooper received $ 1 10 an hour after he was rehired We
note also that, although before his discharge Hooper spent two-thirds of his time doing
high-wall drilling and his remaining worktime at common labor, after he was rehired
he did common labor exclusively.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer Raymond Bennett , Joseph Shreves, and David Hooper9
immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other
rights and privileges;
(b) Make whole Raymond Bennett , Joseph Shreves , and David
Hooper for any loss of pay they may have suffered by reason of the
Respondent 's discrimination against them , by payment to each of them
of a sum of money equal to the amount he normally would have earned
as wages during the period from the date of his discharge as afore-
said, to the date of the Respondent 's offer of reinstatement , less his
net earnings during said period;
(c) Post immediately at his Robey Hollow operations in Harrison
County, West Virginia , in all places where notices to his employees
are customarily posted, copies of the notice attached hereto as "Appen-
dix A." 10 Copies of said notice, to be furnished by the Regional
Director for the Sixth Region, shall, after being duly signed by Re-
spondent or his representative, be posted by the Respondent immedi-
ately upon receipt thereof and maintained by him for sixty ( 60) con-
secutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced , or covered by any other material;
(d) Notify the Regional Director for the Sixth Region in writing,
within ten (10 ) days from the date of this Order , what steps the
Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint , insofar as it alleges
that the Respondent discriminated with regard to the hire and tenure
of employment of Millard Wiseman, be , and it hereby is , dismissed.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist any labor organiza-
° As previously noted, our 8 (3) finding with regard to Hooper Is not predicated on the
nature of his rehiring. Accordingly, unlike the Trial Examiner , we do not concern our-
selves with such remedial details as may flow from the nature of his rehiring.
10 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER," the words, "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
ELWOOD M. JENKS 711
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any and all of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act, as guaranteed by
Section 7 thereof.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Raymond Bennett
David Hooper
Joseph Shreves
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any
such labor organization.
ELWOOD M. JENKS,
Employer.
By -----------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Henry Shore, Esq., for the Board.
Hoffheimer, Stotler, and Louchrey, by Charles W. Louchrey, Esq., and Stewart
McReynolds, Esq., of Clarksburg, W. Va., for the respondent.
Harry Bennett, of Fairmont, W. Va., for the Union.
STATEMENT OF THE CASE
Upon a third amended charge duly filed by United Mine Workers of America,
District No. 31, A. F. of L, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Sixth Region
(Pittsburgh, Pennsylvania), issued its complaint dated March 26, 1947 , against
Elwood M. Jenks, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint, accompanied by notice of hearing, were duly served upon the
respondent and the Union.
With respect to the unfair labor practices, the complaint as amended alleged,
in substance that the respondent: (1) from on or about April 1, 1946 by himself,
his agents, representatives and employees, and more particularly through the
months of April, May, June and July 1946, and at various times thereafter to
the date of the issuance of the complaint herein, made certain statements and
expressions disparaging the Union, expressing hostility to the Union, advising
and urging its employees to refrain from joining the Union, discouraging
membership and activity of its employees in the Union ; inquiring of its employees
concerning their affiliation with the Union and the extent to which its em-
ployees had become affiliated with the Union ; threatening its employees with
discharge for membership in the Union; and utilizing a wage increase to its em-
ployees in May 1946 for the purpose of interfering with and discouraging the
Union's organizational activities among its employees; and (2) by himself,
his agents, representatives and employees, did discharge Raymond Bennett,
May 13, 1946, Joe Shreves, and David Hooper 1 May 16, 1946, and Millard Wise-
man, June 28, 1946, and has since refused and failed to reinstate the aforesaid
employees because of their membership and activities in the Union, because
they engaged in concerted activities with other employees of respondent for the
purpose of collective bargaining and other mutual aid and protection, and in
order to discourage membership in the Union. The complaint alleged that by
the foregoing conduct the respondent engaged in violations of Section 8 (1)
and 8 (3) of the Act.
The respondent in due course filed its answer in which it in substance denied
that it had committed any of the unfair labor practices alleged. Respondent
admitted it had discharged Bennett, Hooper, Shreves, and Wiseman, but denied
that said discharges were motivated by their Union membership or activities on
behalf of the Union, but because of their carelessness, inefficiency and incompe-
tency and failure and neglect of said employees to do the work properly for
which they were employed. The respondent moved to amend its answer at the
hearing to deny that it had discharged Millard Wiseman, but that he was tem-
porarily laid off in the usual course and conduct of its business. The motion was
granted by the undersigned without objection.
Pursuant to notice, a hearing was held in Clarksburg, West Virginia from
June 2 to 6, 1947, inclusive before the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. At the close of the Board's Case in Chief,
counsel for the respondent moved that the complaint be dismissed on the ground
that the evidence adduced by the Board failed to sustain the allegations of the
complaint. The motion was denied by the undersigned. At the close of the
hearing counsel for the respondent again moved that the complaint be dismissed
on the same grounds. The undersigned reserved ruling thereon. It is disposed
of by the findings and recommendations hereinafter made. At the close of the
hearing, the undersigned granted a motion by counsel for the Board to conform
the pleadings to the proof as to dates and minor variances. Upon the con-
clusion of the hearing, the undersigned advised the parties that they might argue
orally, file briefs or proposed findings of fact and conclusions of law, or both,
with the Trial Examiner. The parties declined oral argument. A brief has
been received from the respondent.
1 David Hooper was rehired by the respondent in April 1047.
ELWOOD M. JENKS 713
Upon the entire record, and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Elwood M. Jenks, the respondent herein, is an individual having his principal
office and place of business in Clarksburg, West Virginia. Respondent operates
strip mining operations in and about Harrison County, West Virginia, where he
is engaged in the mining, stripping, sale and distribution of coal. During the
past twelve-month period respondent purchased equipment and supplies valued
in excess of $25,000 of which 60 per cent came from outside the State of West
Virginia. During the same 12-month period the respondent produced and sold
coal of a value in excess of $100,000 of which more than 60 per cent was sold
and shipped to points outside the State of West Virginia. The respondent em-
ploys approximately 45 persons. The respondent concedes for the purpose of this
proceeding only that it is engaged in interstate commerce within the meaning of
the National Labor Relations Act and that it is subject to the jurisdiction of the
National Labor Relations Board.
II. THE ORGANIZATION INVOLVED
United Aline Workers of America, District No. 31, affiliated with the American
Federation of Labor, is a labor organization admitting to membership employees
of the respondent.
III. THE UNFAIR LABOR PR 1CTICES
Interference, restraint and coercion
As indicated above, the respondent, Elwood M. Jenks, is engaged in the strip
mining of coal. The operation we are concerned with herein is known as the
"Robey hollow job." This operation is located near the village of Lumersport,
Harrison County, West Virginia, about a mile from State Highway #20. The
operation is approached by a one lane county road that leads off Route #20.
This road furnishes a peculiar hazard to the respondent's operations in that as it
approaches route #20, the trucks which haul the respondent's coal from the
operation to the tipple, must cross a one lane bridge, about 200 feet in length,
then the tracks of the B&O Railroad, which are approximately 100 feet from the
bridge, then up a steep grade, which is about 75 feet from the railroad tracks to
the entrance to the main highway. At various times of the day the B&O Rail-
road switches coal cars over the tracks. Thus, when the narrowness of the
road is considered with the added hazard of the railroad tracks, plus the steep
approach to the main highway it is obvious that the respondent must provide
some means of control over the traffic that enters and leaves its operations con-
tinuously throughout the day. The respondent has long recognized this situation
and has had a flagman on duty there at all times while the operation is in
progress. His job is to see that the loaded trucks enter the highway safely and
that the empty trucks move regularly and systematically over the road to the
operation, without interference from the trains, and the traffic on the main
highway.
In extracting the coal from the ground the respondent follows the usual
methods followed in strip-mining operations the country over. That is, the coal
vein is approached from the surface, by means of bull-dozers and power-driven
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shovels, with the assistance of various types of drills and explosives. After the
coal is extracted from the vein it is loaded into trucks, and hauled to a tipple
where it is graded and loaded into coal cars.
The incidents with which we are concerned herein evolve around the above
operations!
On April 1, 1946, the United Mine Workers of America broke off contract
negotiations with the Northern and Southern coal operators and went on strike.
The strike ended on May 11, 1946, and the miners were ordered to return to
the pits on Monday morning May 13, 1946.
In West Virginia the miners in the deep pits or the shaft mines are well
organized, and have been for years. On the other hand the workers employed
in the strip operations are not extensively organized. The miners in the deep
pits in order to make their strikes effective and to completely stop the move-
ment of coal, customarily throw a picket line around the strip-mining opera-
tions, in order to accomplish this objective. Thus, on the morning of April 3,
1946, several officials from the Union headquarters in Fairmont, West Virginia,'
accompanied by rank and file members arrived at the respondent's operations
and asked the foreman in charge, Walter Robinson, to shut the operation down.
He complied with their request The operations then ceased until May 11,
1946, when several employees returned to work ; others returned on May 13,
1946.
During the shut-down, from April 3, 1946, to May 11, 1946, the respondent kept
a maintenance crew at work at its "Robey hollow job," for the purpose of cleaning
up and servicing the equipment. Among the employees retained by the respondent
to do this work were the garage mechanics, under the supervision of Burton Smith,
Otis R. Boggess, at that time the driver of a fuel truck for the respondent, and
also its purchasing agent, and James L. Haught, night watchman.
It was stipulated by the parties at the hearing herein, that prior to April 3,
1946, the Union had made no formal attempt to organize the respondent's em-
ployees. As will be shown hereinafter the Union made extensive efforts to
organize the respondent's employees, after April 3, 1946. The most active employ-
ees engaged in this activity were Bennett and Hooper. Their activities in this
connection will be described in detail hereinafter. Suffice it to say however that
by the time the respondent reopened its mine many of its employees had indicated
their desire to join the Union by signing applications for membership cards.
Jenks and Robinson were aware of this fact, and investigated the extent of the
Union's organizational efforts and took certain steps to thwart it, which will be
described in detail hereinafter.
It is clear from the record that Jenks was opposed to the Union, and its at-
tempt to organize his employees. His attitude in this regard is well illustrated
in the testimony of Harry R. Hustead, an employee of the respondent at the
time the events herein occurred.
' As indicated above in that section of this report styled "Statement of the Case," the
complaint alleges that four of the respondent 's employees were discriminately discharged
for engaging in Union and concerted activities . The duties of the four employees were
as follows , Bennett operated a bull -dozer, Hooper was a "high -wall driller," Shreves was
the flagman, and Wiseman was a truck driver.
3 District No. 31, of the United Mine Workers of America , the Union herein, has its
effices in Fairmont. District 31 has jurisdiction over the miners in Harrison County, West
Virginia.
ELWOOD M. JENKS 715
Hustead testified that on Sunday, May 19, 1946, he had a conversation with
Jenks, at Doyle's Store, in which Jenks interrogated him about the Union. Fol-
lowing is Hustead's testimony in this regard.
Q How did it happen that you started talking to Mr Jenks?
A. Brown and I was in the car starting out, and Mr. Jenks called Mr.
Robinson and somebody hollered at me as I passed by, I don't know which
one it was, and I went back and talked to them.
Q. What if anything did Mr. Jenks say to you at that time?
A. He wanted to know what I thought about Union organization, and I
told him I thought it was the best thing for the men, and thought it would
help conditions a lot, and he wanted to know why, and I told him the way
we were working long hours a day, we didn't get no time and a half until
after forty hours, where under a Union contract we would get it after seven.
He said if we joined the Union, lie had to sign up, and he would cut the
operation to thirty-five hours a week and put on two shifts. At that time
lie was operating one shift a day, that is, one crew of men We talked there
for quite a while and Mr Robinson, he had to go somewhere, and he left,
and Mr. Jenks and I still stayed there and talked. He asked me what I
thought the men were kicking about most on his operation and I told
him it was the long hours that they were working It was what I didn't
like. Well, he said he was giving us a twenty-cent raise on the hour at
that time. The Union was only getting eighteen and a half, I believe, and
that made hint pay more than the Union scale, and I told him it didn't be-
cause he didn't pay time and a half except after forty hours, whereas the
Union contract would call for it after seven. We talked around there and
I told him that I belonged to an organization, the Teamsters' organization,
for several years before going into the Army, and he said that he didn't
want no union I told him I had never seen an Operator yet that did. I
told him my experience with the Teamsters Union. That is about all, I
guess
Jenks admitted the conversation with Hustead ; that he told Hustead that he
did not think a Union was necessary ; and that if there were any grievances
lie would rather "make the adjustments willingly than be forced to by anyone."
Jenks did not deny that he told Hustead that he did not want a Union The
undersigned credits Hustead's testimony in this regard in its entirety.
Jenks further testified that he made substantially the same statements con-
cerning his attitude towards the Union to employee Scott at about the same
time.
Hustead also testified that a few days before his conversation with Jenks on
May 19, 1946, Robinson came to hint while lie was in his truck,4 which at the
time was parked at the shovel, and asked him if he had joined the Union, and
what he thought about the Union's organizational efforts. Hustead replied that
he had joined the Union, and that he thought unionization was a good thing for
the employees. His testimony in this regard stands undenied in the record, and
is credited by the undersigned.
* Hustead also testified without contradiction that at the time this incident occurred
several trucks were lined up awaiting their turn at the shovel, and that Robinson went to
each truck and conversed Ni ith each di iver. The record does not disclose the subject natter
of these conversations
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Millard Wiseman, a former truck driver for the respondent , testified that
around May 15 or 16 , 1946 , Robinson came to him while he was in his truck
waiting for it to be loaded by the shovel , and asked him what he thought about
the Union , and if he had signed an application for membership card. He told
Robinson that he thought the Union was all right , and admitted that he had signed
an application card. Robinson then said to him , "Do you know I could fire you
for that?", and that Hooper and Shreves had just been "fired " by the respondent
for Union activity . Robinson then turned to Clayton , a bull-dozer operator, who
was nearby and asked him if he too had joined the Union . Clayton replied that
he had not , and did not intend to do so.
Robinson did not deny the above incident nor did lie specifically deny having
had the above conversation with Wiseman or Clayton . Robinson 's only testimony
in this regard is a general denial of having made any statements of this nature
to any of the respondent 's employees.
The undersigned finds hereinafter that Robinson was not a reliable witness e
Wiseman impressed him otherwise . Accordingly the undersigned credits Wise-
man's testimony in this regard.
Wiseman further testified that shortly after his conversation with Robinson he
also had one with Jenks. Following is his testimony in this regard :
Q. Now, did you have any occasion to see Mr. Jenks later that day?
A. Yes, it was either the same day, the afternoon of the same day, or the
next day, I just don't recall, but Mr. Jenks came up and said, "Is there any
more Union nests around here?" I said, "I don't know anything about that."
He said, "Well , what do you think about the Union?" I said, "The Union is
all right," and he said, "I 've already fired Dave (Hooper and Joe Shreves
and I 'm going to fire anybody else that has anything to do with it, with the
Union." So he says to me then, he says that if we do sign up with the Union,
"You won't get as much pay to take home as you do now , because I'm going
to run two shifts a day , five days a week. You'll only get thirty -five hours a
week and you won 't get no overtime."
Q. Where were you at the time Mr. Jenks spoke to you?
A. Just about the same place.
Q. Same place as what?
A. As where I talked to Mr. Robinson , when I was sitting there waiting
my turn to go into the shovel.
Q. Was it during working hours?
A. Yes, sir.
Jenks did not testify concerning the above incident , and moreover did not
specifically deny that he made the above statements to Wiseman . The only
testimony in the record in this regard is Jenks' general denial that he had ever
made such statements to any of his employees. The undersigned finds herein-
after that Jenks was not a reliable witness . Wiseman, as found above, impressed
him otherwise . Accordingly the undersigned credits Wiseman 's testimony in
this regard.
The complaint alleged in substance that the respondent granted a wage increase
to its employees in May 1946 , for the purpose of interfering with and discourag-
ing the Union 's organizational activities among its employees. The record is
clear that the respondent granted a wage increase of 20 cents per hour to all its
5 Clayton was not called by the respondent as a witness , nor was any showing made at
the hearing that he was unavailable as a witness.
6 See that section of the report styled "The discriminatory discharges."
ELWOOD M. JENKS 717
employees shortly after it resumed operations on May 11, 1946, and it was
reflected in their pay checks for the first pay period after resumption of opera-
tions, May 18, 1946.
Jenks admitted granting the wage increase but denied that the Union 's organ-
izational efforts had anything to do with it. He contended that during the
period of the shut-down it was the general opinion among the strip mine opera-
tors in the West Virginia coal fields that, the O. P. A. would permit an increase in
the price of coal as a result of the general strike then in effect in the bituminous
coal fields. He further testified that at about the time that the mine operators
and United Mine Workers of America reached an agreement, around May 11,
*946, he was informed by his coal broker that he would receive an increase in
price for his coal, and that he then decided to pass this increase on to his
employees in the form of wages.
The respondent also contends that the wage increase was granted in accord-
ance with its long established custom of paying a higher wage than the pre-
vailing rate paid for like work by other operators of strip mines in the
community.
According to the credible evidence adduced at the hearing from witnesses
called by both the Board and the respondent, it was at about this same time that
the Union's organizational drive was at its peak.
Concluding findings
It is clear from the foregoing findings that the respondent was bitterly
opposed to the organization of its employees by the Union . Jenks' statements to
Hustead that if the employees joined the Union he would put the operation on a
two shift basis, and thus reduce their weekly wage , was in the opinion of the
undersigned clearly intimidating and coercive , and was made for the purpose of
interfering with the concerted activities of his employees. Likewise were his
statements to Wiseman . Again , Robinson 's questioning of Hustead concerning
his Union affiliation, and his coercive statements to Wiseman, were also intimi-
dating and coercive and likewise uttered for the purpose of interfering with the
organizational efforts of the Union.
The record clearly shows that at the time the respondent granted its employees
a wage increase of 20 cents per hour , that the operations of the "deep " mines in
the bituminous coal fields, increased the hourly wage of their employees 181/2
cents per hour in accordance with the terms of the contract negotiated between
the Government 7 and the United Mine Workers of America, and which was for-
mally executed on or about May 11, 1946.
When Jenks' statement to Hustead that he was increasing the hourly wage 20
cents per hour and that this was higher than the increase of 181/2 cents per hour
secured by the Union in its new contract with the Government, is considered in
the light of his antipathy towards the Union, and the further fact that it was
made at the time the organizational drive was at its peak, the undersigned is
convinced that the increase was motivated with the intent of interfering with the
Union's organizational efforts.
7 It is a matter of common knowledge that following the breakdown in negotiations
between the operators in the bituminous coal fields , and the United Mine Workers of
America , that the Government under the authority of the Smith -Connally Act, seized the
mines During the period from April 1, 1946 , and May 11 , 1946, the Government and the
Union finally reached an agreement , which is commonly referred to as the "Krug" agree-
ment. The undersigned takes judicial notice of the terms of said agreement.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The discriminatory discharges
The Board and the Courts in a long line of cases have consistently held that
an employer by granting an increase in wages at a trine when its employees are
engaged in concerted activities, and under circumstances similar to those involved
herein constitutes interference with the rights of employees as guaranteed by
Section 7 of the Act.8 The undersigned is convinced and finds, that the granting
of the aforesaid wage increase was calculated to show the respondent's hostility
towards the Union, and hence convince its employees that "resort to self-organiza-
tion was plainly uiiiecessary."0
In view of the foregoing and upon the record as a whole, the undersigned finds
that the respondent has interfered with, restraint,d, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
"The discriminatory discharges"
1. Raryinond Bennett
Bennett was hired by the respondent sometime in November 1945 as a bull-
dozer operator. He was hired by foreman Robinson at $125 per hour. Before
entering the services of the respondent Bennett had operated bull-dozers for
various road contractors, and strip-mining operators, for a period of 12 years
on different jobs in West Virginia, and Pennsylvania. In the course of this
employment he had operated various makes and types of tractors and bull-
doz,^rs. Upon entering the service of the respondent he was assigned a "cat-
erpillar" bull-dozer to operate It was the oldest and heaviest bull-dozer used
by the respondent on the operation involved herein.10
Bennett testified that durin-, the course of his employment with the respond-
ent lie was never criticized b) any member of management about his work, or
that any complaint was ever made to hi i about his conduct on the job.
On the morning of April 3, 1946, Bennett reported to work along with other
employees of the respondent and was at the junction of the road that runs up
to the respondent's operations and route No. 20, when the pickets from the
Union arrived. Among the pickets was one Kent A. Stalnaker, an organizer
for the Union, and an old friend of Bennctts." Stalnaker told Bennett that the
Union wanted to organize the employees of the respondent, and asked him to
assist in this effort. Bennett readily agreed to this request, and accepted from
Stalnaker several Union applications for membership cards, and proceeded to
hand them out to various employees who were present. This was done openly
and no attempt was made by Bennett to conceal his activities in this regard.
At this time Bennett secured three or four signed applications from various
employees of the respondent." The pickets from the Union stayed at the june-
8 Medo Photo Supply Corp. v N L R B, 321 U S 678; N. L R B v. May Department
Store , 146 F. (2d) 66 , (C C. A. 8), 326 U. S 376; F. W. Woolworth Co. v. N. L R B , 121
F. (2d) 658, (C C A 2) ; N L R B v Fitzpatrick d Weller, Inc, 138 F. (2d) 462 (C C A.
8), 46 N. L R. B 28.
9X L R B v Christian Board of Publication , 113 F (2d) 678, 681 ( C C A. 8) , see
also N. L. R B. v. Crown Can Co., 138 F. (2d) 263, (C C. A 8), cert den. 321 U S 769.
i8 A bull-dozer is a tractor type machine equipped with an adjustable blade in front, and
is used to assist in removing the earth, rock, stumps and other debris that lies over the coal
vein The bull-dozer operated by Bennett, was a 1941 model
11 Bennett admitted on cross-examination that he had on previous occasions assisted
Stalnaker in organizing the emplovees for the Union at other strip mines in West Virginia.
32 The parties stipulated at the hearing that April 3 , 1946 , was the date the Union began
its drive to organize the respondent 's employees.
ELWOOD M. JENKS 719
tion of the ioads, described hereinabove for a short time, and then proceeded
to go up to the operation itself. Bennett accompanied them. It was at this
time they met Foreman Robinson, and requested him to shut the operation
down. Robinson agreed to do so, after first requesting permission to finish load-
ing a steel hopper. The pickets granted him permission to do so. From this
time until May 11, 1946, the operation was shut down."
After the respondent's operations shut down April 3, 1946, Bennett openly
and actively proceeded to organize the respondent's employees for the Union.
He traveled about the country side in his car, and called at the homes of the
employees and solicited their membership in the Union. In addition he secured
the services of other employees to assist him in his organizational efforts, among
them, David Hooper." On at least one occasion he, accompanied by Hooper,
went to the respondent's operation and openly solicited those employees who
were engaged in maintenance work. During this same period Bennett arranged
a meeting of the employees and officials of the Union, which was held in Lumbers-
port. It was attended by a substantial number of the respondent's employees.
From April 3, 1946, to May 11, 1946, the Union, largely through the efforts of
Bennett secured the applications of 39 of the respondent's 45 employees. Accord-
ing to Bennett he was paid the wages due him at the time of the shut-down
[April 3, 1946], on April 6, 1946, the respondent's regular pay day, either by
Robinson or Warren Richardson, the respondent's assistant general manager,
and that at this time nothing was said to him by either of them concerning his
tenure of employment. He further testified that in accordance with the in-
structions received from the Union he returned to work on Monday morning
May 13, 1946, and at that time was discharged by Robinson ; and that the only
reason given him for the discharge was that the respondent did not require his
services any longer.
Bennett continued his activities on behalf of the Union following his discharge."
The respondent's contention
The respondent contends that Bennett was discharged for cause in that he
was careless and inefficient in his work, unnecessarily rough in handling equip-
ment, diank intoxicating liquor while on the job, and finally, the chief reason
for his discharge was the fact that on April 1, 1946, he carelessly knocked down
an electric power line pole causing the high tension line, that passed over its
leased property to break and thus endangered his own life and those working
with hun. The latter event, according to Jenks, was the culminating factor in
Bennett's discharge. In support of its contentions the respondent offered ithe
testimony of numerous witnesses.
Jenks testified that Bennett was unusually rough on equipment, and as a
result of this caused considerable breakage of various parts of the bull-dozer
he operated such as the main spring, circle, ears on the circle, the blade, and
the final drive assembly. He further testified that he cautioned Bennett on
several occasions to "try and get along with a little less breakage even if he
didn't get as much work done." [Emphasis supplied.]
As regards Bennett's drinking, Jenks testified that on one or two occasions
lie smelled liquor on Bennett's breath, and assumed he had been drinking. How-
is During the period from April 3, 1946, to May 11, 1946, the respondent kept a main-
tenance crew at work without any interference from the Union . See infra
14 One of the alleged dischargees herein . See infra
15 The foregoing findings of fact as based on the uncontradicted and credible testimony of
Bennett, Harry Bennett, and David Hooper.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever he admitted that he had never caught him drinking on the job. He also
testified that he informed Bennett at the time he was hired that he would not
tolerate drinking on the job, especially by employees who handled equipment,
such as tractors, shovels and the like. In this regard he [Jenks] also testified
that "no drinking" on the job was a "hard, stiff, and fast rule" and rigidly en-
forced at all times. Jenks admitted however that he did not say anything to,
Bennett about drinking on the job, after he was hired in November 1945.
Jenks further testified that he was notified of the breaking of the high tension
line on the afternoon of April 1, 1946, by the superintendent of the properties
of a nearby coal company, which received its electric power over this particular
line. This particular individual complained to Jenks about the incident be-
cause it had cut off the electric power to the properties under his supervision.
Jenks then proceeded to investigate the incident, and was informed by Robinson
that Bennett had hit the pole with the bull-dozer and broken it, thus causing
the electric power line to break. Jenks was forced to repair the damage that
resulted from this accident. The next day Jenks told Robinson to discharge
Bennett. On cross-examination lie admitted that he made no independent in-
vestigation as to what caused the accident.
On both direct and cross-examination Jenks testified that the primary reason
that he ordered Robinson to discharge Bennett was the electric light pole inci-
dent, because it made an "impression" upon him, especially since it might have-
injured innocent people. On cross-examination however, he admitted that when
he was interviewed by a representative of the Board in July of 1946, that he
did not mention the light pole incident as one of the factors in Bennett's dis-
charge. In explanation of this oversight Jenks testified that at the time he
was interviewed by the Board's field examiner he "didn't think it was necessary
at that time to go into details." 18
Jenks testified on direct examination that he did not learn of the Union's or-
ganizational drive among his employees until sometime around May 15, or 16, 1946,
when he noticed some Union application cards lying on the seat of a car
owned by Lewis W. Heaton, one of his employees, then working at the tipple.
He further testified that he did not know Bennett was active in organizing for
the Union until after his discharge.
Walter Robinson, the respondent's foreman on the "Robey hollow job," tes-
tified that he hired Bennett in November 1945, as a bull-dozer operator. On
direct examination he testified that the tractor assigned to Bennett was the oldest
and heaviest on the job, and was hard to keep in repair on account of the rough
surfl:lce of the ground. Robinson's testimony is substantially the same as that
of Jenks in so far as it relates to Bennett's operation of the tractor.17
As regards Bennett's drinking on the job, he testified on direct examination
that he had never talked to Bennett about drinking on the job, and the re-
1o One of the reasons given by Jenks to the field examiner for discharging Bennett, was
that he had been involved in an automobile accident on Route 20, sometime prior to the-
discharge The respondent did not advance this incident as a defense at the hearing in the
instant case.
11 Robinson admitted on direct examination that the bull-dozer operated by Bennett was
the oldest and heaviest on the job, and that the ground was hard on the tractor. His testi-
mony in this regard was as follows :
"Well I told him time after time that the tractor had to be worked pretty easy because
in the kind of ground he was working, it was pretty hard on the tractor, and parts.
was hard to get and we wasn't replaced [sic] with tractors, and we had to keep what
we had moving, the few we had."
•
ELWOOD M. JENKS 721
spondent's rule in this regard, particularly as regards men who handled ma-
chinery.18
Robinson's testimony in regard to the electric light pole incident was that he
did not see the accident, but saw the results thereof shortly thereafter. On
cross-examination he admitted that he made no independent investigation to de-
termine the cause of the accident. He further testified that it was after the
electric light pole incident that lie was instructed by Jenks to discharge Bennett
"in a round about way". According to Robinson, Jenks told him to get rid of
Bennett on April 1, 1946, the date the incident occurred. He admitted however
that Bennett worked all day April 1, and the following day April 2, and reported
to work on April 3, 1946, and that he neither reprimanded him nor discharged
him at that time. In explanation of this delay on his part in carrying out Jenks'
instructions to get rid of Bennett, Robinson testified that he didn't want to dis-
charge Bennett until he made "other arrangements" and got somebody to take
his [Bennett's] place, and that it was for this reason he waited until April 6,
1946, the regular pay day to discharge Bennett.19
On cross-examination Robinson admitted that in a sworn affidavit executed
by him before Leo J. Kloos, Jr., a field examiner for the Board, that he did not
mention the electric power line incident to Kloos, as one of the reasons for
Bennett's discharge.
Robinson insists that Bennett was discharged on April 6, 1946. He admitted
however, that Bennett reported for work on the morning of May 13, and that
he told him that he had been advised on April 6 that his services were no
longer required.
Robinson further testified that he did not "know for sure" that Bennett was
engaged in Union activities until after he discharged him.
On cross-examination Robinson admitted that in the affidavit given a Board
field examiner, and referred to hereinabove, he made inter alga the following
statement in regard to Bennett : a
I did not know that he was active in Union organization. I did not learn
that he passed union cards out until the latter part of April 1946. At that
time Bennett and Dave Hooper were up at the garage. They were leaving
when I arrived, but a shop man by the name of Boggess told me that they
were there trying to get the men to sign up Burton Smith and several other
men were in the garage at that time. I told Mr. Jenks that these two men,
Bennett and Hooper, were trying to sign the men up in the Union. [Emphasis
supplied.] 20
18 It is significant however that Robinson in a signed affidavit given a field examiner for
the Board, July 31, 1946, stated that he had caught Bennett drinking twice on the job, once
in January and once in February 1946, and that he told him both times that "he would have
to stop it, because that was one thing Mr. Jenks would not stand for on the job " The
Board introduced the aforesaid affidavit in evidence to impeach Robinson's testimony in
another regard See infra.
19 For reasons that will be shown hereinafter it is significant that Bennett was replaced
by John Ashcratt, one of the respondent's regular bull-dozer operators, and who was working
for it during the entire period of Bennett's employment The respondent offered no evidence
showing that Bennett was replaced by a new employee. Moreover, the respondent's opera-
tions were shut down from April 3 to May 11, 1946, and it is unlikely that respondent was
hiring new employees during this period
10 Robinson admitted executing the above affidavit Counsel for the respondent did not
question its authenticity. On re-direct examination, however, counsel for the respondent
interrogated Robinson at some length as to whether he made certain statements in the
affidavit , and in reply he testified in answer to each query without exception, in the follow-
ing language : "No sir, I don 't think I did," "not as I recollect, no, sir," etc.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •
Odis R. Boggess, an employee of the respondent at all times material herein,
testified that he did not tell Robinson that Bennett and Hooper were trying to
sign up men for the Union at the time referred to above.
Burton Smith, a former employee of the respondent and referred to in the
above affidavit, testified that he could not recall the above incident n
John Ashcraft, Jr., employed by the respondent as a bull-dozer operator, testi-
fied that Bennett had given him a drink of intoxicating liquor a number of times
while they were on the job. He further testified in substance that neither Jenks
nor Robinson ever reprimanded him for drinking while on the job, but that
Richardson the assistant manager, caught him taking a drink one day, and
reminded him of Jenk's rule about drinking, and that he had better obey it,
or lie would be laid off and fired from the job.
Ashcraft also testified that Bennett gave him an application card for mem-
bership in the Union and that he signed it. He further testified that shortly
thereafter he talked to Jenks about the Union, for about 30 minutes during work-
ing hours and that Jenks during the course of the conversation said if the boys
wanted a Union it would be all right with him. It is significant that he could
not recall anything else that was said about the Union in this conversation.
Bennett admitted drinking on the job, and testified that Robinson also had
drunk with him ; that neither Jenks nor Robinson had ever reprimanded him for
such conduct; and that the drinking occurred in the winter of 194:-1946, during
the cold weather. He further testified that on several occasions parts of the
bull-dozer were broken while he was operating it. He attributed this however
to the rough usage that a bull-dozer is subjected to in this type of work. For
example, he testified without contradiction that when the broken main spring"
was examined, it was found that more than half of the leaves were in a rusted
condition at the break, and had been broken some time prior to the complete
break which occurred while he was operating it.^
According to the, credible testimony of David Hooper, lie went with Bennett
on a few occasions to see employees of the respondent for the purpose of soliciting
their applications for membership in the Union. Most of these trips occurred
during the shut-down. During this same period he talked to Robinson about
securing work with the maintenance crew which as indicated above was kept
at work during the shut-down without interference from the Union Robinson
refused to employ him in this work and during the course of the conversation that
ensued questioned him about his union membership and activities. He admitted
that lie belonged to the Union and that other employees had signed applications
for membership cards. Upon further questioning lie also admitted to Robinson
21 Smith also testified concerning the various repairs made to the bull-dozer operated by
Bennett. He was unable to give dates or any estimate of the cost of the various repairs
on the bull-dozer In explanation of the respondent's failure to produce this documentary
evidence, he testified that the sheet on which the cost of maintaining the equipment was
kept was destroyed by a the sometime after Bennett's discharge
22 The respondent made much ado about the broken main spring at the hearing, and
offered in evidence an invoice showing the cost of replacement, $144 82., for the mateuial
alone. It is significant that this was the only evidence offered by the respondent showing
the actual cost in dollars and cents to the respondent as a result of Bennett ' s alleged care-
lessness in handling the bull-dozer
13 The record does not disclose the actual date that the main spring was broken, but the
invoice for the new spring shows that it was shipped from Charleston, West Virginia, on
February 21, 1946 At this time Bennett had been in the employ of the respondent for
approximately two and a half months Hence , the rusted condition of the previously
broken leaves would indicate that they had been broken prior to Bennett's operation of the
bull-dozer.
ELWOOD M. JENKS 723
that the Union had selected its committee to meet with the respondent. Robinson
told him that he had received his information about the Union from Boggess 2t
In view of Robinson's conflicting testimony relative to knowledge of Bennett's
Union activities, and the statement made in his affidavit given to a Board field
examiner July 31, 1946, the undersigned is convinced that he did not give a
true account in his testimony at the hearing in the instant case of his knowledge
in this regard. Moreover, Robinson did not impress the undersigned as a reliable
witness. He was inclined to be forgetful concerning incidents, which in the
opinion of the undersigned were within his own peculiar knowledge, and lo-
quacious as regards trivialities. Accordingly the undersigned discredits his testi-
mony in this regard.
Hooper impressed the undersigned as a reliable and forthright witness. The
undersigned credits his testimony and finds that Boggess informed Robinson that
Bennett and Hooper solicited applications for membership in the Union from the
employees of the respondent who were working at its garage during the shut-down,
and that the statement of Robinson in his affidavit was a true account of what
actually occurred, and that shortly thereafter he informed Jenks of,,the incident
in the manner described by him in said affidavit.
In view of the foregoing findings the undersigned is convinced that Jenks'
version as regards his knowledge of the Union activities of Bennett, Hooper,
and other Union protagonists is likewise untrue. Accordingly the undersigned
does not credit his testimony in this regard.
As indicated above, Boggess denied that he told Robinson that Bennett and
Hooper were at the garage one evening in the latter part of April 1946 for the
purpose of soliciting applications for membership in the Union. Boggess did
not impress the undersigned as a reliable witness. Accordingly the undersigned
discredits his testimony in this regard.
A similar conflict is found in the date of Bennett's discharge and the reason
therefor. Bennett insists it was May 13, 1946; Jenks and Robinson insist it was
on April 6, 1946. The primary reason for the discharge according to both Jenks
and Robinson was the breaking of the electric utility pole on April 1, 1946, and
that the decision was reached by them that day to discharge Bennett. Yet they
permitted him to finish his work that day, all the next day, and said nothing
to him on April 3, 1946, when he reported to work, and according to their testi-
mony waited until April 6, 1946, to inform him of their action. When their
version of the circumstances surrounding Bennett's discharge is considered in
the light of the procedure followed in other discharges, that is that when others
were discharged by the respondent they were paid off forthwith'21 it is difficult
to credit the testimony of either in this regard. Moreover, when their testimony
as to Bennett's conduct prior to the electric utility pole incident, and their failure
to discharge him at those times, is considered in the light of the failure of either
Jenks or Robinson to advance the electric utility pole incident as a ground for
discharge to the Board's field examiner in July 1146 when he investigated the
case, convinces the undersigned that the testimony of neither of them is worthy
of belief, either as regards the date of Bennett's discharge or the reasons therefor.
Bennett impressed the undersigned as a reliable witness. Accordingly he credits
his version of what transpired at the time of his discharge, and is convinced
and finds that the date of his discharge was May 13, 1946.
u See excerpt from Robinson 's affidavit set forth in the text herein above . For a more
detailed account of this conversation see infra under the section of this report dealing
with the discharge of Hooper and Shreves
26 When Shreves and Hooper were discharged they were paid off forthwith . See infra.
829595-50-vol. 81-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing and upon the record as a whole the undersigned is
convinced and finds: ( 1) that Bennett was discharged by the respondent on
May 13, 1946; ( 2) that the respondent was well aware of his Union activities
at the time of his discharge ; and that ( 3) the reasons advanced by the respondent
for his discharge were not the true reasons for their action in this regard.
Concluding findings as regards the discharge of Raymond Bennett
The undersigned has found above that the respondent discharged Bennett on
May 13, 1946. He has also found above that the reasons advanced by the re-
spondent for Bennett 's discharge in July 1946, were drinking on the job in
January and February 1946, and rough handling of the bull-dozer during the
same period , and that the respondent at no time advanced the incident surround-
ing the breaking of the electric utility pole as a ground for Bennett 's discharge
until the hearing in the instant case. He has also found above that Bennett was
the instigator of the Union 's organizational drive among the respondent's em-
ployees, and that his activities were well known to the respondent prior to his
discharge on, May 13, 1946.
When the foregoing findings are considered in the light of the respondent's
antipathy towards the Union as found in that section of this report styled
"Interference , restraint , and coercion," the undersigned is convinced that the
reasons advanced by the respondent for its discharge of Bennett were not the
true reasons.
In view of the entire testimony of the respondent 's witnesses , their incon-
sistencies , the various conflicts , particularly that of Jenks and Robinson, the
shifting of its position as regards the primary reason for his discharge, and
their failure to discharge him when there was no Union activity for conduct
that was clearly reprehensible,28 convinces the undersigned that it is fair to
infer that the true reason for his discharge was his open and notorious leader-
ship in the Union's organizational drive, his membership therein, and activities,
rather than the reasons advanced by the respondent.
Accordingly the undersigned finds that the respondent discharged Raymond
Bennett because of his Union membership and activity and thereby discrimi-
nated in regard to his hire and tenure of employment and discouraged mem-
bership in the Union , and that the respondent thereby violated Section 8 (1)
and (3 ) of the Act.
2. David Hooper and Joseph Shreves
Foreword
The events surrounding the discharge of Hooper and Shreves are so closely
interwoven that the undersigned is convinced that in order to present a clear
picture and to avoid repetition in this report that they should be considered
together.
a. David Hooper
David Hooper was first hired by the respondent in October 1944, as a laborer,
at 80 cents per hour, shortly after operations started on the "Robey hollow
26 Clearly , ample ground existed for Bennett ' s discharge in January and February 1946,
both for his drinking on the job , and for his rough handling of the bull -dozer , however, the
respondent did not choose to do so. _lioreon er, the respondent had ample ground to discharge
Bennett forthwith on April 1 , 194C , when he broke the electric utility pole, regardless of
whether it was accidental or othernuse , and again the respondent did not choose to exercise
its prerogative and discharge him at the time the incident occurred
ELWOOD M. JENKS 725
job." He, along with other employees , received a 10 cents per hour raise in
March of 1945. At about this time, Hooper was assigned to operate the high-
wall drill for the respondent . It is clear from the record that the operation
of a high-wall drill requires considerably more skill than that required for
common labor . The high-wall driller has a helper assigned him, and is in com-
plete charge of the equipment while it is in use. His duties require him to
keep the equipment in good condition , drill holes in the high-wall , and place
the explosive charges therein after the drilling is completed . According to
Hooper , he operated the high-wall drill approximately two-thirds of his work-
ing time, and when not so engaged worked as a common laborer along with
those employees who were classified as such . The latter work consisted of
cleaning coal , removing loose debris from the top of the coal vein , repairing
roads, and various jobs of like nature. In January 1946 , Hooper asked Robinson
for a raise, and shortly thereafter received an individual raise of 10 cents per
hour Y7 According to Hooper he was never reprimanded by either the respond-
ent or any other representative of management from the date he was first hired
by the respondent to the date of his discharge on May 16, 1946.
Hooper reported to work on the morning of April 3 , 1946, and was present
at the junction of the road that goes up to the respondent 's "Robey hollow job,"
and route 20, when the Union 's pickets arrived and threw a picket line across
the road . According to Hooper there were several of the respondent's em-
ployees present . He mingled amongst them and the men sent by the Union
to serve as pickets. During this time he saw Bennett converse with the Union
officials and pass out application for membership cards to the assembled em-
ployees. Bennett gave him a card which he signed and returned . After the
picket line was established across the road , Hooper got into Bennett 's car and
rode up to the job. At about the same time several of the Union officials also
went up to the job. When the latter arrived they requested the employees who
were already on the job to quit work , and respect the picket line. Shortly
thereafter they contacted Robinson and asked him to shut down the operations.
Hooper was present while these events occurred.
During the shut-down , from April 3 to May 11 and 13, 1946, Hooper accom-
panied Bennett [ in the latter 's car] on at least two occasions and called on
employees of the respondent for the purpose of soliciting their membership in
the Union sa Among those signed up by Hooper were Marion Shreves and
Joseph Shreves.
According to Hooper , sometime during the shut-down he met Robinson at
Doyle's store and rode with him over to Lumbersport . During the course of
the ride Hooper asked Robinson why he was not getting any of the maintenance
work that the respondent was engaged in during this period , since he was the
oldest employee on the job . Robinson told him that he was not working any-
body but Marion and Joseph Shreves m Robinson then said , "I guess you
27 After Hooper was granted the individual 10 cents per hour raise, his rate was 20 cents
per hour higher than those employees who were classified as laborers.
28 The record is not clear as regards the actual number of trips that Hooper made with
Bennett in this regard . However the undersigned is convinced that he made at least two
trips, one to call on Bernard Robey, and another when he went with Bennett in the later
part of April 1946, to the respondent 's garage for the purpose of soliciting those who were
kept at work during the shut -down for the purpose of repairing and maintaining the
equipment . See supra in re the discharge of Bennett.
29 The record is not entirely clear as to just how many employees were engaged in main-
tenance work during this period. The undersigned is convinced , however, that when the
entire record is considered , that the respondent kept its regular maintenance crew at work
around the garage and shop and in addition permitted at least two of its employees who
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are a right smart Union Man " Hooper admitted that he was. Robinson then
said, "I guess a couple of fellows have signed cards." Hooper replied, that be
knew nothing about that. Robinson then asked him if the Union had selected
its committee to deal with the respondent. Hooper told him that the committee
had been selected. During this same conversation Robinson informed Hooper
that Boggess, the respondent's purchasing agent, had told him about his
[Hooper's] union activities '0
Hooper returned to work on May 11, 1946, and performed his regular
duties as a high-wall driller and general laborer until his discharge on May
16, 1946. During this period he continued his activities on behalf of the Union
and on one occasion gave Joseph Shreves at the latter's request application for
membership cards to give to the respondent's truck drivers. At the time of his
discharge Hooper's hourly rate was $1.20 3'
As indicated above Hooper was discharged on May 16, 1946. He reported
to work on that morning and was instructed by Robinson to move the high-
wall drill to a point on Ten-mile creek, about V100 feet ahead of the shovel.
At the time Robinson gave him these instructions the high-wall drill was about
150 feet back of the shovel. According to Hooper there was some little delay
in getting a bull-dozer to move the drill. Shortly after the drill was moved
to the place indicated by Robinson, Boggess 33 came to Hooper and informed
him that Robinson wanted to see him over at the shop. Hooper then proceeded
to the shop with Boggess. En route they stopped at Doyle's store" and picked
up Joseph Shreves. Robinson was not present when they arrived at the shop,
but showed up a few minutes later.
Robinson stayed at the shop a few minutes and then left, at the time instruct-
ing Hooper and Shreves to await his return . Shortly thereafter the respondent's
timekeeper arrived and asked them if they were the men that had been "fired."
About an hour later Robinson returned and he and the timekeeper figured up
the wages due them and made out a check to each. Robinson then said to them,
"I guess you fellows want to know why you got fired ?" Quite naturally they
said yes, and he told them it was because "you just talked too much Union."
Shortly thereafter Robinson left again for the purpose of seeing Jenks, and to
get the checks signed . A short time later he delivered the checks to them at
Doyle's store. At that time Shreves asked Robinson to put on their separation
slips that they were being discharged for Union activity. He refused to do so
and told them that such a statement was unnecessary. Hooper and Shreves then
told him that they intended to take the matter up with the Board. Robinson
informed them that if they did, he would tell the "Labor Board the same thing I
told you." At the same time he said that he didn't have a thing against them
individually, except "too much Union."
Robinson denied making the above statements to Hooper and Shreves- at the
time they were discharged. His version of the incident and the conversation that
ensued was as follows :
were actually engaged in mining operations to assist the maintenance crew These em-
ployees were Marion Shreves and Joseph Shreves. The latter is one of the employees
named in the complaint as having been discriminatorily discharged by the respondent See
supra.
90 Robinson did not deny having had the above conversation with Hooper Accordingly
the undersigned credits Hooper's testimony in this regard.
3 As found hereinafter the respondent granted a general mcreaae of 20 cents per hour to
all its employees shortly after May 11, 1940 Hooper participated in the increase
>u Heretofore identified as the respondent's purchasing agent
33 Shreves ' flag station was about 75 feet from Doi lee store
ELWOOD M. JENKS 727
Q Then what did you do when you got back and the timekeeper was there?
A. Well, they was sitting in the shop and I went to the shop door and
called for them to come outside and they come outside, and I asked them
how many hours they had that morning and the timekeeper figured up their
time, and while the timekeeper was figuring up their time we was talking
there, first one thing and another, I don't know whether it was Joe or Dave
that said, "Well, I reckon we're getting fired on account of the Union?" And
I said, "Well, if I was firing you on account of the Union I'd fire one-half of
the men on the job."
Q. You know that practically all of the employees on the job had signed
applications to join the Union, did you?
A. That's right.
Q. Did you then tell Dave Hooper and Joe Shreves that they were
discharged?
A. Yes, sir.
The undersigned has found above that Robinson was an unreliable witness.
Hooper and Shreves impressed him as being honest and forthright witnesses.
Accordingly the undersigned credits their version of the incident and finds that
Robinson made the statements attributed to him by Hooper and Shreves at the
time of their discharge.
Contention of the respondent
The respondent contends that Hooper was discharged for cause in that he was
inefficient , careless , incompetent , and did not perform his work in a proper man-
ner. In support of its contention the respondent offered the testimony of nu-
merous witnesses.
Jenks testified that Hooper throughout his tenure of employment had a habit
of standing around talking to other employees during working hours , and thus
interfered with their work He further testified that he talked to Robinson
about Hooper 's derelictions in this regard on several occasions , and requested
him to reprimand Hooper and to put a stop to it. According to Jenks , Hooper's
conduct in this regard did not improve thereafter and he finally decided to
discharge him on May 16, 1946, as a result of the following incident . On that
date Jenks went to the "Robey hollow job" and was unable to find Hooper. He
then made inquiry concerning his whereabouts among the employees who were
working and none could give him the desired information . He then made an
independent search for Hooper and still was unable to locate him . Shortly
thereafter he contacted Robinson and told him to discharge Hooper, and while
he was at it he might as well discharge Joseph Shreves at the same time '
On cross-examination Jenks was unable to remember any of the circumstances
surrounding the instances that he found Hooper talking to other employees
during working hours . Moieover he could not recall any of the occasions that
he instructed Robinson to reprimand Hooper, nor could he recall the time and
place where he himself had spoken to Hooper in this regard.
As indicated above Hooper 's hourly wage when first employed by the respondent
was 80 cents per hour, a few months later, in March of 1945, he received the
general increase of 10 cents per hour, and in January of 1946, an individual raise
of 10 cents per hour , and participated in the general increase of 20 cents per
hour given after the shut-down in May of 1946. In explanation of the granting
"The events surrounding Shreves' discharge will be discussed in detail hereinafter.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Hooper of these various increases in view of the respondent's contention that
he never had been a satisfactory worker Jenks in substance, offered the following.
According to Jenks, Hooper was permitted to participate in the general increase
in March 1945, because shortly prior thereto he had been assigned to work with
the high-wall drill, and since the other employees so engaged were granted the
increase he too was permitted to participate therein in order to avoid dissension
The individual raise given Hooper in January 1946, was granted at the specific
request of Robinson, and contrary to his wishes. He felt that Hooper was not
entitled to the raise because of his conduct on the job, but finally granted it
after he was assured by Robinson that Hooper's work would improve as a result
thereof. Contrary to Robinson' s assurance however, Hooper's work in the
opinion of Jenks did not improve thereafter and he soon drifted into his old
habit of talking to other employees during working hours. Hence instructions
were given to the paymaster not to grant Hooper the 20 cents per hour increase
that went in effect after the shut-down. However, through some inadvertency
his final pay check dated May 16, 1946, included the increase.
Jenks denied that Hooper's discharge was motivated by his activities on behalf
of the Union. In fact he denied having any knowledge of Hooper's membership
in or activities on behalf of the Union at the time of his discharge, or thereafter.
As indicated above Hooper was rehired by the respondent on April 28, 1947,
as a laborer at $1 per hour. In explanation of its action in this regard in
view of its contentions as to the cause of his discharge the respondent offered
the testimony of Jenks and Robinson.
According to Jenks, Hooper was rehired at the request of Jerry Robey, owner
of the land where the respondent's operations are carried on. Robey and Hooper
have been neighbors and friends for years. Following Hooper's discharge in
May 1946, he found it difficult to find employment and in desperation went to
his old friend Robey and asked him to intercede for him with Jenks, and en-
deavor to get his job back. Robey complied with his request and asked Jenks to
rehire him. Inasmuch as Jenks was under obligation to Robey he finally ac-
quiesced to his pleas and rehired Hooper. At the time, he instructed Robinson
to put him to work at isolated places where he would not interfere with other
employees by talking to them while they were working. Hooper was so employed
at the time of the hearing in the instant case.
Robinson's version of Hooper's employment record was substantially the same
as that of Jenks, except in minor details. He admitted however that at intervals
Hooper was a good worker, and attributed his periodical inefficiencies to the fact
that he was a diabetic 30 Robinson also admitted that he never had reprimanded
Hooper for talking to other employees during working hours.
As found above, Jenks contended that the raise given Hooper in January of 1946
was granted at the special request of Robinson. Robinson's version of the inci-
dent was that Hooper had been after him for quite some time for a wage increase,
and in fact had pleaded with him to secure it and in explanation of his urgent
need for an increase informed him that he was running behind in his grocery
bills and could not feed his family on his present wages, that his two boys who
had recently been discharged from the Army had spent all their money and could
not contribute to the household expenses. He further testified that he had
known "Old Dave" for years, in fact since he was a child. He felt sorry for
3 Hooper admitted that he was hospitalized for diabetes in 1943, and had been taking
insulin treatments ever since. He testified without contradiction, that he had never been
forced to stop work for the respondent due to this condition. At the time of the hearing
herein, Hooper was 58 years old.
ELWOOD M. JENKS 729
Hooper and interceded with Jenks on his behalf and as a result secured him a
10 cent per hour increase. At the time he told Jenks that he felt that Hooper's
work would improve as a result thereof.
Hooper's testimony in regard to the circumstances surrounding the above in-
crease is at variance with that of both Jenks and Robinson. His testimony in
this regard was as follows :
Q. (By Mr. SHORE) When you got your June-when you got your January
1946, raise, had you complained to Mr. Robinson about the fact that your
boys were spending money and therefore you needed a raise?
Mr. LoucHREY. Objection, Mr. Robinson did not say that Mr. Hooper had
complained at all. It was Mr. Robinson's own idea.
Trial Examiner SHAW. I will have to overrule you on that, I remember
the question very well.
(Question read.)
A. I did not.
Q. (By Mr. SHORE.) Now, did your boys have money at that time?
A. They did.
Q. Will you state whether or not one of them had been a prisoner of war?
A. He had been twenty-eight months.
Q. And will you state whether or not he had received any money as a
result of that at that time because of having been a prisoner of war?
A. Just about that time he received $1,650.001 just about January 1.
Q. How about your second boy, did he have any money at that time?
A. He had received his Discharge Pay, $300.00, and he had been working
for Mr. Jenks and the older boy had been working for Mr. Jenks too, up to
about January 1.
Q. Now, was there a time when you said something to Mr. Robinson about
your boys spending their money?
A. There was.
Q. And was that before or after you got your January 1946 raise?
A. It was after, because the boys both had money at that time.
Q. In January of 1946 were your boys paying you any money?
A. Ten dollars a week.
Q. Room and board?
A. Yes, apiece.
The undersigned has found herein above that Jenks and Robinson were un-
reliable witnesses. On the other hand he has found Hooper to be otherwise.
Accordingly he credits Hooper's testimony in this regard.
As indicated above, the respondent offered in support of its contention in this
regard, the testimony of numerous witnesses. All were either in its employ at
the time of the hearing in the instant case or former employees at the time the
events herein occurred. The undersigned has considered their testimony in its
entirety and finds it unnecessary to resolve it for reasons which will be apparent
hereinafter. Suffice it to say that on the whole it is speculative in character
and of little probative value when considered in the light of his findings herein
above as regards the credibility of Jenks and Robinson.
The undersigned has considered the record in its entirety and is convinced
that the respondent's attitude towards Hooper during his tenure of employment
from October 1944, to his discharge on May 16, 1946, belie its contention that
he was discharged for the reasons advanced herein above. It is unlikely that
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent would keep a man in its employment who was as incompetent
as Hooper is alleged to have been and at the same time grant him progressive
wage increases . Nor is it likely that the respondent was motivated by altruistic
idealism in so doing as intimated by both Jenks and Robinson.
In view of the above findings and upon the record as a whole the undersigned
is convinced that the foregoing contentions of the respondent as regards its
motivation for Hooper 's discharge were not the true reasons , and he so finds.
Accordingly . the undersigned rejects its contention in this regard as being
without merit.
Joseph Shreves
Joseph Shreves was hired by the respondent in November 1945 as a laborer.
Shortly thereafter he sustained an injury to his arm in the course of his
employment , which incapacitated him for work as a laborer . Robinson then
assigned him to work as a flagman at the junction of the road from the operation
and Route 20. As a flagman it was his job to keep the empty trucks moving
regularly from the main highway to the job, without interfering with the loaded
trucks as they came from the job . The necessity of this procedure has been
described in detail herein above and will not be reiterated in this section of
the report by the undersigned . Another important part of his job was to act
as watchman at the railroad crossing near the junction of the road from the
operations and route 20. His station was at the junction . No shelter was
provided him and during the cold weather his only protection against the elements
was a bonfire. His tour of duty was uncertain , and on many days he worked
12 to 14 hours . Again, no provision was made for his relief during working
hours, not even to answer calls of nature . It was the practice for the drivers
of the empty trucks to stop at his station and request him to go to Doyle's
store and get them cigarettes , etc. He always complied with their requests
and would give them the merchandise upon their return trips . When the
trucks were held up by a passing train it was his custom to get into the cab
of one of the trucks and await the passing of the train . He followed this routine
throughout the tenure of his employment , and was never warned ; or reprimanded
by any member of management for so doing. Nor was he ever told that such
practices were violative of the respondent 's rules.
During the shut -down from April 3 to May 11, 1946 , Shreves and his brother
Marion were selected by the respondent to work with the maintenance crew.
Sometimes during this period, Hooper solicited his membership in the Union,
and he signed an application for membership card.
Following the resumption of operations by the respondent on May 11, 1946,
Shreves went back to work at his job as flagman . On the following Monday,
May 13, several of the truck drivers voluntarily stopped their trucks and
asked him to secure for them application cards for membership in the Union.
He complied with their requests and secured the cards from Hooper and the
following morning gave them to the drivers. Two days later he was discharged
by the respondent.
According to the credible and undenied testimony of Clarence Shreves, shortly
after Hooper and Joseph Shreves were discharged , Robinson asked him to
go down to the flagging station and act as flagman, and also told him that he
had just fired David Hooper and Joseph Shreves for "talking too much on the
job." Robinson in the course of the conversation advised him that the em-
ployees were to get a 20 cent per hour wage increase . At the same time he
asked him what he thought about the Union.
ELWOOD M. JENKS 731
Shreves' version of the incidents surrounding his discharge and that of Hooper,
have been set forth hereinabove and will not be reiterated by the undersigned
in this section of the report.
Contention of the respondent as to the discharge of Joseph Shreves
The respondent contends that Shreves was discharged because of his in-
efficiency, carelessness, incompetency, and his failure and neglect to perform
his job as a flagman in a proper manner. In support thereof it offered the
testimony of several witnesses.
Jenks testified in substance that shortly after Shreves took over the job
of flagman, he saw him on occasion talking to truck drivers as he came by
the flagging station on his way to the job. According to Jenks this caused the
trucks to "bunch up" and arrive at the shovel at irregular intervals, thus
interfering with the operations at the pit. This situation became so bad,
particularly after the shut-down, that he finally ordered Robinson to fire
Shreves on May 16, 1946. The reason for ordering his discharge on that particu-
lar date was because he failed to see Shreves at his flagging station on his way
to the job that morning.
On cross-examination Jenks admitted that he had never seen Shreves stop
a truck and talk to the driver. Furthermore, he admitted that he never made
any independent investigation to determine what caused the trucks to come into
the shovel "bunched up,"' but "assumed" it was due to Shreves' talking to the
drivers. Nor did he ever interrogate the individual truck drivers and attempt
to ascertain from them the cause for the delays. Moreover he admitted that
the trucks could be delayed by a passing train or highway traffic. He also
admitted that he made no effort to ascertain Shreves' whereabouts on the
morning of the discharge nor did he ask Robinson to make an investigation.
He further testified that he did not discharge any of his truck drivers for
talking to Shreves.
Robinson's version of the circumstances surrounding Shreves' discharge is
substantially the same as that of Jenks except as to the tome his alleged
derelictions occurred. According to Robinson, Shreves' practice of stopping the
truck drivers was worse prior to the shut-down than thereafter. In fact he
testified that he did not see Shreves talking to any truck drivers from May 11
the date operations resumed until the date of his discharge May 16, 1946.
Robinson admitted that the respondent neither provided shelter for Shreves
nor made any provisions for his relief during his tour of duty. He insisted
however that it was unnecessary to provide shelter for Shreves, since it was
possible for him to use a nearby bus shelter on route 20. According to Robinson
the bus shelter was a three-sided structure with the open end towards the main
highway and closed on the side that faced the road from the operation. Thus
Shreves could see the empty trucks returning from the tipple but not the loaded
trucks coming from the shovels. The shelter was on the same side of route 20
as Doyle's store, and about the same distance from the flagging station. He
admitted that the most important part of Shreves ' work was to see that the
loaded trucks entered the main highway safely and without interference. He
also admitted that no truck drivers were discharged for stopping their trucks
for the purpose of requesting Shreves to get them cigarettes, sandwiches and
the like from the store.
The undersigned has carefully considered the contention of the respondent
as regards its reason for the discharge of Joseph Shreves, and the testimony
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered on its behalf in support thereof. When Shreves' working conditions are
considered in the light of the admissions of both Jenks and Robinson that it was
the practice for the truck drivers to stop at the flagging station and request him
to purchase for them cigarettes, sandwiches and the like, and the failure of
Jenks to reprimand either Shreves or the truck drivers for such conduct ;
Robinson's failure to reprimand Shreves or discharge any of the offending truck
drivers who acted in concert with him ; and finally the fact that Shreves was
retained by the respondent to work on its maintenance crew during the shut-down,
convinces the undersigned that his derelictions in this regard were of such a
trivial nature that it is inconceivable that his discharge was motivated thereby.
When his discharge is considered in the light of the events that were occurring
at the time thereof, and the findings made hereinabove, the undersigned is
convinced that the true motives for Shreves' discharge were not those advanced
by the respondent at the hearing herein, and in its brief, but for the reasons
set forth herein. Accordingly the undersigned rejects the contentions of the
respondent in this regard as being without merit.
Concluding findings
In view of the foregoing findings and upon the record as a whole the under-
signed is convinced that the respondent's true motive for the discharge of David
Hooper and Joseph Shreves was as stated by Robinson to them at the time thereof,
and it was because "you just talked too much Union."
As indicated above the undersigned has considered the contentions of the
respondent that both Hooper and Shreves were discharged for cause and has
found them to be without merit. That the alleged derelictions of Hooper and
Shreves may have presented grounds upon which the respondent might also
have discharged them, is beside the point. Particularly when the history of
their tenure of employment is considered in the light of the entire record ;
Jenks' admitted antipathy towards the concerted activities of his employees ;
and finally Robinson's inconsistent and unreliable testimony, the undersigned is
convinced that neither discharge was for cause. As the Board recently said,
In the Matter of Spencer Auto Electric Inc, 73 N. L. R. B. 1416:
. .. We have uniformly recognized that "an employer may discharge an
employee for good reason, a poor reason or no reason at all so long as the
provisions of the National Labor Relations Act are not violated" [authority
cited]. However, where as here, anti-union considerations precipitate the
discharge, we have found, and the Courts have agreed, that such a discharge
is discriminatory and prohibited by the Act, even though valid reasons exist
which might warrant this action [authority cited].
The undersigned finds that David Hooper and Joseph Shreves were discharged
because of their Union membership and activities and that, by their discharges,
the respondent has discriminated in regard to their hire and tenure of employ-
ment, thereby discouraging membership in a labor organization 88 The under-
signed finds further that by such discharges, the respondents have interfered
as It is clear from the record that with discharge of Hooper and Shreves, the organizational
drive of the Union came to a standstill. According to the uncontradicted and credible
testimony of Harry Bennett, secretary and treasurer of the Union, he filed charges with the
Board on behalf of Hooper and Shreves on May 21, 1946, and the Union's organizational
drive ended shortly thereafter. Thus, in the considered opinion of the undersigned the
respondent accomplished its purpose of defeating the Union's organizational efforts by the
discharge of Bennett , Hooper, and Shreves.
ELWOOD M. JENKS 733
with, restrained, and coerced their employees, and are interfering with, restrain-
ing, and coercing their employees in the exercise of the rights guaranteed in
Section 7 of the Act.
3. Millard Wiseman
Millard Wiseman was hired by the respondent on February 9, 1946, as a truck
driver. On June 28, 1946, he along with two other truck drivers, Burns and Reid,
were instructed by Burton Smith, foreman of the respondent's garage to park
their trucks. At the time Wiseman's truck was badly in need of repairs, and
he had reported its condition to Robinson, who also instructed him to park it at
the garage. Wiseman did as requested and waited around the garage for a
short time, and then left. He reported for work as usual the next morning and
found that his truck had not yet been repaired. On the following Monday
morning upon reporting for work, he again found that the truck had not yet
been repaired. He then inquired of Jenks why he was not assigned to other
work. Jenks told him in substance that Robinson had charge of that part of
the business. Shortly thereafter he contacted Burton Smith, foreman in charge
of the garage and asked him if there "was anything wrong" with his work.
Smith told him that his work was satisfactory, but gave no reason for his lay-off.
At the time Wiseman was laid off there was at least one truck driver with less
seniority than he, who was retained by the respondent. After his lay-off the
respondent, from time to time, hired new truck drivers.
As noted above, two truck drivers, Burns and Reid were laid off simultaneously
with Wiseman. Smith told Burns at the time that the trucks were being parked
for repairs, and also for the reason that the respondent had a surplus of trucks
at that particular time. Burns was called back to work by Smith about 2 weeks
after the lay-off on June 28.
According to the credible testimony of Dale Mason, he was hired by the re-
spondent as a truck driver on July 5, 1946. A few days after he went to work
Robinson instructed him to drive by Wiseman's home and tell him to report for
work the next day. At the time Robinson told him where Wiseman lived and
how to get there. On his way home that same evening he stopped at the forks
of the road that led off to Wiseman's home and talked to some boys who were
playing in a nearby brook. He asked them if they knew Wiseman and where
he lived. They told him that he lived near their home. He then asked them
to tell Wiseman to report to work the next day. They promised to do so. He
then drove on home. The next morning he reported the foregoing incident to
Robinson.
According to the evidence adduced at the hearing the respondent made no
further effort to contact Wiseman.
Wiseman joined the Union on May 14, 1946. His application for membership
was solicited by Hooper and Shreves. He signed the card in the cab of his truck
in their presence while he was parked at the railroad crossing waiting for a
freight train to pass. He later secured some application cards from Hooper and
gave them to Burns and Reid who signed them, in the latter part of May or the
first part of June 1946. According to the credible testimony adduced at the hear-
ing this was the extent of Wiseman's activity on behalf of the Union and there
is no showing in the record that the respondent had knowledge thereof.
As found above the respondent learned of Wiseman's membership in the Union
shortly after the discharge of Hooper and Shreves, as a result of his conversa-
tions with Jenks and Robinson.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contentions
The Board in its complaint alleges that Wiseman was discharged by the re-
spondent because of his membership in and activities on behalf of the Union.
The respondent in its answer as amended at the hearing in substance denies the
Board's allegation, and avers that Wiseman was not discharged but was laid off
in the usual conduct of its business, and not for his membership in the Union
or activities on its behalf.
Conclusion
Upon the record as a whole the undersigned is convinced and finds that Wise-
man along with Burns and Reid was laid off by the respondent on June 28, 1947.
The undersigned has found above that the respondent had knowledge of Wise-
man's membership in the Union. He has also found above that the respondent
knew that practically all the employees had signed application cards. It is clear
from the record that Bennett, Hooper, and Shreves were the first of the respond-
ent's employees to actively participate in the Union's organizational drive, and
the undersigned has found above that the respondent discharged them for such
activity. The record is clear that in addition to these three employees at least
two others later actively participated in the Union's drive, Lamar M. Harbert,
and Lewis W. Heaton,97 and that the respondent had knowledge thereof. The
undersigned has found above that Wiseman's activity on behalf of the Union
consisted of giving application for membership cards to Burns and Reid, and
that the respondent had no knowledge thereof.
In view of the foregoing findings and upon the record as a whole the under-
signed is of the opinion that Wiseman stands in a somewhat different position
from that of Bennett, Hooper, and Shreves. Bennett was the first and most active
protagonist for the Union, and his activities were open, notorious, and well known
to the respondent. Hooper and Shreves were told by Robinson that they were
being discharged for Union activity. Wiseman, on the other hand, was not overly
active on behalf of the Union, and what little activity he did engage in was un-
known to the respondent.
From the foregoing it is clear that the question presented herein is as follows :
Did the respondent lay off Millard Wiseman because of his membership in the
Union and his activities on behalf thereof? The undersigned is convinced and
finds that when Wiseman's case is considered in the light of all the surrounding
circumstances that it cannot be said that his lay-off was motivated thereby. True
he was a member of the Union, but so were the great majority of the respondent's
employees. It must be remembered that the Union's organizational efforts ended
shortly after Hooper and Shreves were discharged. Wiseman's lay-off did not
occur until some 6 weeks thereafter. Moreover the little activity he did engage
in was unknown to the respondent. Hence it cannot be said that the latter was
the motivating force behind his lay-off. Again the burden of proof was on the
Board to prove by substantial evidence that his lay-off was discriminatory. In
the opinion of the undersigned the Board failed to do so. While there is sus-
picion that his lay-off might have been because of his membership in the Union,
but a finding to that effect must be bottomed on substantial evidence, not mere
guesswork or speculation.38 Accordingly the undersigned finds that Wiseman was
87 Harbert and Lewis were first hired by the respondent on May 11, 1946. Neither was
discharged by the respondent for his Union activity.
38 See Matter of Pittsburgh Standard Envelope Co., 20 N. L. R. B . 516 ; Matter of Motor
Products Corp., 34 N. L. R. B. 1236; Cupples Company Manufactures V. N. L. R. B., 103
F. (2d) 933 (C. C. A. 8).
ELWOOD M. JENKS 735
laid off by the respondent on June 28, 1946, in the regular course and conduct of
its business, and that his membership in or activity on behalf of the Union had
nothing to do with its action in this regard. Accordingly the undersigned will
recommend the dismissal of this allegation in the Board's complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the respondent discriminated in regard to the hire and
tenure of employment of Raymond Bennett, David Hooper," and Joseph Shreves,
because of their membership in and activities on behalf of the Union, it will be
recommended that the respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions90 without prejudice to
their seniority or other rights and privileges, and make them whole for any
loss of pay they may have suffered by reason of such discrimination, by payment
to them of a sum of money equal to that which they normally would have
earned as wages from the date of their discriminatory discharges to the date
of the offer of reinstatement, less their net earnings" during that period. It
will also be recommended that the respondent post appropriate notices to their
employees as hereinafter set forth.
Upon consideration of the entire record, the undersigned is convinced that
the respondent's conduct indicates an attitude of opposition to the purposes
of the Act generally. In order, therefore, to make effective the interdependent
guarantees of Section 7 of the Act, thereby to minimize industrial strife which
burdens and obstructs commerce, and thus to effectuate the policies of the Act,
it will be recommended that respondent cease and desist from in any manner
infringing upon any of the rights guaranteed in Section 7 of the Act.
On the basis of the foregoing findings of fact and upon the entire record,
the undersigned makes the following :
CONCLUSIONS OF LAw
1. United Mine Workers of America, District No. 31, A. F. of L., is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, respondent has engaged in and
$9 David Hooper was rehired by the respondent in April 1947. However he was not
reinstated to his former or substantially equivalent position. At the time of his discharge
his- hourly rate was $9.20, and his rate at the time of rehiring was $1.00 per hour.
40 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position
wherever possible, but if such position is no longer in existence, then to a substantially
equivalent position." See Matter of The Chase National Bank of the City of New York,
San Juan, Puerto Rico Branch, 65 N. L. R. B. 827.
41 See Matter of Crossett Lumber Co., 8 N. L. R. B. 440; 497-498.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
3. By discriminating in regard to the hire and tenure of employment of Ray-
mond Bennett, David Hooper, and Joseph Shreves, thereby discouraging member-
ship in United Mine Workers of America, District No. 31, A. F. of L., respondent
has engaged in unfair labor practices within the meaning of Section 8 (3)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not engaged in unfair labor practices by discharging
or laying off Millard Wiseman.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that respondent, Elwood M. Jenks, Clarksburg, West Virginia,
and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Mine Workers of America, District
No. 31, A. F. of L., or any other labor organization, by discriminating in any
manner in regard to the hire and tenure of employment, or any condition of
employment of any person in its employ, because of membership in or assistance
to any labor organization or because of engaging in concerted activities with
other employees of the respondent for the purpose of collective bargaining or
other mutual aid and protection.
(b) In any other manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist the above named or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds necessary
in order to effectuate the policies of the Act :
(a) Offer to Raymond Bennett and Joseph Shreves, immediate and full re-
instatement to their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges;
(b) Make whole Raymond Bennett and Joseph Shreves, for any loss of pay
they may have suffered by reason of respondent's discrimination against them,
by payment to each of them of a sum of money equal to the amount he normally
would have earned as wages from the date of his discharge as aforesaid, to the
date of the respondent's offer of reinstatement, less his net earnings during said
period.
(c) Make whole David Hooper for any loss of pay he may have suffered by
reason of respondent's discrimination against him, by payment to him of a sum
of money equivalent to what he normally would have earned as wages during
the period from the date of his discharge, May 16, 1946, to the date he was reem-
ployed by the respondent in April 1947, less his net earnings, if any, during said
period, and restore him to his former or substantially equivalent position and
make him whole for any loss of pay he may have suffered since the date he was
reemployed in April 1947, by reason of the respondent's discrimination in reem-
ploying him at a lower hourly rate than that paid him at the time of his discharge.
(d) Post immediately at its Robey Hollow operations in Harrison County,
West Virginia, in all places where notices to its employees are customarily
ELWOOD M. JENKS 737
posted, copies of the notice attached hereto as "Appendix A." Copies of said
notice, to be furnished by the Regional Director of the Sixth Region, shall, after
being duly signed by respondent's representative, be posted by the respondent
immediatly upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Sixth Region in writing within ten
(10) days from the date of receipt of this Intermediate Report, what steps
the respondent has taken to comply with the foregoing recommendations.
It is further recommended that the complaint, insofar as it alleges that the
respondent has discriminated with regard to the hire and tenure of employment
of Millard Wiseman, be dismissed.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203.45 of said Rules and Regulations, file with
the Board, Rochambeau Building, Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report. Immediately upon the filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the
other parties. Proof of service on the other parties of all papers filed with the
Board shall be promptly made as required by Section 203.85. As further pro-
vided in said Section 203.46, should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the case
to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions
and order, and all objections and exceptions thereto shall be deemed waived
for all purposes.
JAMES A. SHAW,
Trial Examiner.
Dated September 4, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations, to join or assist UNITED MINE WORKERS OF AMERICA, DISTRICT
No. 31, A. F. OF L. or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the dis-
crimination.
Raymond Bennett
David Hooper
Joseph Shreves
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
ELWOOD M. JENKS,
Employer.
By -----------------------
(Representative) (Title)
Dated--------------------
NOTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.